Garrett Epps

Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.com. His book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.

Recent Articles

“Freedom is the freedom to say that two plus two make zero,” Winston Smith, the hero of George Orwell’s Nineteen Eight-Four, writes in his secret journal. “If that is granted, all else follows.” Or to paraphrase for the modern era, “EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.” The second line is from the per curiam opinion of the Court of Appeals for the D.C. Circuit announced Tuesday in Coalition for Responsible Regulation v. Environmental Protection Agency . This decision is a massive win for science generally, and climate science in particular, against powerful forces that have spent a decade insisting that two plus two equals four. To understand the background of the case, you must recall that in the 2007 case of Massachusetts v. EPA , the Supreme Court rejected the Bush administration’s argument that the EPA had no jurisdiction over greenhouse gases. Carbon dioxide and other heat-trapping gases, the administration...

One of the most interesting dynamics on the Roberts Court is the emerging rivalry between Justice Antonin Scalia and Justice Samuel Alito for intellectual leadership of the conservative wing. From time to time, Alito openly mocks Scalia’s “originalist” philosophy (see, for example, his concurrence in United States v. Jones , ridiculing the idea that “eighteenth-century tort law” can decide questions about global positioning technology). It’s a generation thing: Alito is a callow 62 to Scalia’s 76. Like young folk everywhere, he’s embarrassed for his friends to see him in public with crazy Uncle Nino. So spare Alito a shred of empathy for what happened during the opinions session Monday. For the first time in his tenure, Alito delivered a dissent from the bench. It was a stem-winder, too—largely ad lib, intemperate, and dripping with scorn for the Court’s majority. Yet Scalia’s bizarre electioneering rant against Obama the same day is now the talk of the legal nerdosphere. The outrage...

Governor Jan Brewer applauded Monday’s decision in Arizona v. United States for upholding “the heart of S.B. 1070.” Wrong. In an opinion by Justice Kennedy, the Court struck down the three provisions that prescribed punishment for the undocumented. It upheld one provision—but made clear that, unless Arizona courts themselves limit the measure, that one is likely to fail an as-applied challenge once it goes into effect. (The majority consisted of Chief Justice Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Writing partial dissents were Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Justice Elena Kagan took no part in the consideration of the case.) Justice Antonin Scalia concluded his dissent—intemperate even by his own talk-radio standards—with a denunciation of the Administration’s “deferred action” program (which was not even remotely before the Court), and of President Obama himself. Kennedy’s opinion concluded that...

During the 1980s and '90s, conservatives liked to talk about the “sagebrush rebellion,” in which local officials in Western counties tried to take back federal land and escape the “tyranny” of federal land-management and environmental rules. That rebellion still simmers. But today, the Supreme Court crushed, for the moment, a newer rebellion out of the West. In Western Tradition Partnership v. Bullock , decided last fall, the Montana Supreme Court blasted a different federal rule— Citizens United v. Federal Election Commission , in which the Court held that the federal government could not regulate or restrict “independent” expenditures by individuals and corporations designed to affect the results of federal elections. That decision has set up the unseemly free-for-all that is federal campaign finance today, where the issue agenda is increasingly set by “independent” funders like American Crossroads and Sheldon Adelson. In Western Tradition, the Montana Supreme Court declined to...

Thursday was First Amendment day at the Supreme Court. But the Court ducked the chance to decide what is literally its most visible case of the term—the “dirty words on broadcast TV” case. Federal Communications Commission v. Fox Television Stations , was on its second trip to the show. Seven justices delivered an opinion that sheds no light at all on the interesting issue—whether the government may ban “fleeting expletives” on broadcast TV. Briefly, the case concerned a new FCC rule subjecting broadcasters to fines if their shows included even brief, or “fleeting” uses of dirty words or nudity. In 1978, the Court held that the FCC could discipline broadcasters for transmitting sustained “indecent” speech—in this case, George Carlin’s magnificently profane 12-minute “Filthy Words” monologue—during daylight and early evening hours, when children might hear it. Since that decision, decency groups have badgered the FCC to tighten the rules on dirty words. Not until the George W. Bush...